Nyaradzo Mercy Hlatshwayo v Edson Charangwa

The plaintiff and defendant were former lovers who also had business dealings. In May 2011, the parties signed an acknowledgment of debt wherein the defendant acknowledged owing the plaintiff US$95,000, which he undertook to pay in two tranches: US$70,000 on 22 June 2011 and the balance on 22 July 2011. The plaintiff claimed the entire amount remained unpaid and issued summons for provisional sentence. The defendant claimed he had paid off most of the debt with only US$715 outstanding, based on an acknowledgment of receipt dated 27 August 2013 (Exhibit 2) for US$1,800. The relationship turned sour in 2013 when the defendant allegedly assaulted the plaintiff during a UNTWO Conference in Victoria Falls and stole US$2,515 from her purse. The plaintiff claimed that Exhibit 2 related to part payment of the stolen money, not the loan debt, and was drafted by defendant's lawyers in Victoria Falls so she would not press theft charges.

• Whether the defendant had extinguished his debt in full in terms of the acknowledgment of debt
• Whether the acknowledgment of receipt (Exhibit 2) related to the loan debt of US$95,000 or to stolen money
• Whether the defendant discharged his onus to prove payment of the acknowledged debt
• Whether the plaintiff was entitled to costs on a legal practitioner and client scale

1. The defendant shall pay to the plaintiff the sum of US$95,000 together with interest thereon at the prescribed rate from date of summons to date of payment in full. 2. The defendant shall pay the plaintiff's costs of suit on a legal practitioner and client scale.

Where a defendant acknowledges a debt in writing, the onus is on the defendant to prove payment of that debt. Proof of payment cannot be predicated on probabilities or vague recollections - the defendant must produce credible evidence of payment, particularly where the alleged payment was in respect of a written debt. An acknowledgment of receipt that makes no reference to the original debt and relates to different circumstances (in this case, stolen money rather than a loan) cannot serve as proof of payment of the original acknowledged debt. Where parties agree in a written acknowledgment of debt that costs of suit shall be on a legal practitioner and client scale, such costs will be awarded in the absence of submissions to the contrary.

The court observed that it was astonished at the defendant's legal practitioners' submissions that the court should accept the defendant "probably" made repayment based on weak evidence. The court noted that the defendant appeared "either as extremely foolish, or merely dishonest" for claiming to have made numerous repayments of a written debt without keeping any record whatsoever. The court also commented that it did not see the relevance of the numerous other claims and reports made by the plaintiff against the defendant in this particular matter, as the case simply turned on whether the defendant had proven payment of an acknowledged debt. The court remarked that it did not take much stock of the error by plaintiff's legal practitioner to still claim provisional sentence in closing submissions after a full trial had been conducted.

This case illustrates important principles in Zimbabwean contract law regarding acknowledgments of debt and the burden of proof in debt recovery actions. It demonstrates that where a debt is acknowledged in writing, the onus rests squarely on the debtor to prove payment with credible evidence. The case emphasizes that courts will not accept vague claims of payment based on probabilities when dealing with written contractual obligations. It also reinforces that acknowledgments of receipt must be clearly linked to the specific debt claimed, and that credibility assessments of witnesses play a crucial role in resolving factual disputes. The case further confirms that contractual provisions for costs on a legal practitioner and client scale will be enforced where agreed upon and no submissions are made against such an award.